Snooping for Whistleblowers: The FDA Gets Caught

There are few things more feared or more hated by government bureaucrats than whistleblowers. A whistleblower can alert Congress to some major infraction. The agency is not in the least concerned with the infraction. It is concerned about negative publicity.

Negative publicity can lead to the two most feared responses: (1) an investigation by an outside board set up by Congress, (2) budget cuts. Budget cuts never happen, but investigations do.

The Food and Drug Administration got caught spying on its own employees. The agency was looking for whistleblowers.

Nothing will come of this. The agency’s budget will rise. But at least we can have some amusement at the expense of a group of overpaid, tenured bureaucrats. Government is bankrupting us. At least we should get entertainment value out of our share of the federal government’s expenditures.

This story hit The New York Times. This is always fearful for bureaucrats. Times stories get picked up by network TV news shows.

The FDA began monitoring the emails of letters sent by disgruntled scientists on its payroll. These people were sending emails to Congress, lawyers, and journalists.

What began as a narrow investigation into the possible leaking of confidential agency information by five scientists quickly grew in mid-2010 into a much broader campaign to counter outside critics of the agency’s medical review process, according to the cache of more than 80,000 pages of computer documents generated by the surveillance effort.

Moving to quell what one memorandum called the “collaboration” of the F.D.A.’s opponents, the surveillance operation identified 21 agency employees, Congressional officials, outside medical researchers and journalists thought to be working together to put out negative and “defamatory” information about the agency.

Then a terrifying thing happened. Word got out about this surveillance. The public relations catastrophe began to escalate.

The FDA of course defends this system of surveillance. Only five sneaks — excuse me, scientists — were involved.

Let’s see: 80,000 emails divided by 5 equals 16,000 emails per employee. That’s a lot of emails. What did these five employees do to earn their salaries?

The FDA’s explanation does not pass the smell test.

While they acknowledged that the surveillance tracked the communications that the scientists had with Congressional officials, journalists and others, they said it was never intended to impede those communications, but only to determine whether information was being improperly shared.

How detailed was the program of snooping? Very. The software tracked their keystrokes on their computers. It intercepted emails. It copied documents on their thumb drives.

All this to put a lid on the critics’ whistleblowing on medical imaging devices. The critics said that review procedure were faulty. The FDA allowed the companies to sell the machines, despite problems with radiation.

Then disaster happened, as disasters often do. Some private document-handling contractor posted the FDA’s purloined emails on a public site. The New York Times found out.

That was when the staffers on Capitol Hill found out about the emails: 66 directories full of them.

And then, the ultimate disaster: The Washington Post ran a story. The Post! The in-house trade publication of The System.

Oh, woe! Oh, the unfairness of it all!

The FDA may have broken the law.

While federal agencies have broad discretion to monitor their employees’ computer use, the F.D.A. program may have crossed legal lines by grabbing and analyzing confidential information that is specifically protected under the law, including attorney-client communications, whistle-blower complaints to Congress and workplace grievances filed with the government.

So, the spin has begun in earnest.

F.D.A. officials said that in monitoring the communication of the five scientists, their e-mails “were collected without regard to the identity of the individuals with whom the user may have been corresponding.” While the F.D.A. memo described the Congressional officials and other “actors” as collaborating in the scientists’ effort to attract negative publicity, the F.D.A. said that those outside the agency were never targets of the surveillance operation, but were suspected of receiving confidential information.

The White House’s Office of Management and Budget has now sent a memo — yes, my friends, a memo! — to agencies, warning them that it is illegal under federal law to intimidate whistleblowers.

Has anyone in the FDA been indicted? Well, no. But a memo has been sent!

The documents do not say who authorized this investigation. Will wonders never cease. It’s called “no spikka da English!”

Investigation? What investigation?

Six scientists — wait a minute! I thought it was only five — are suing the government. They have hired a lawyer.

Some of these scientists were fired by the FDA. That seems to be illegal.

The FDA made a huge error. The stolen emails mentioned actual Congressional staffs. The staffs of course did nothing about any of this. This makes the Congressmen look like dolts who are too busy raising funds to mind the store.

This is an outrage! A bipartisan outrage!

Members of Congress from both parties were irate to learn that correspondence between the scientists and their own staff had been gathered and analyzed.

One such fund-raising Congressman, a Democrat, has issued a statement. He says that “it is absolutely unacceptable for the F.D.A. to be spying on employees who reach out to members of Congress to expose abuses or wrongdoing in government agencies.”

When a bureaucracy creates embarrassment for Congressmen in an election year, it really is in trouble.

There will be an investigation.

But no budget cuts.

For the juicy details of the PR nightmare for the FDA, click the link.

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